Every civil wrong has a number of requirements that must be satisfied before the plaintiff may obtain compensation for resulting harm. One requirement common to all wrongs is that the harm must be attributable to the defendant’s wrongful conduct. It may broadly be said that the defendant’s wrongful conduct must constitute a cause of the harm. This always involves an inquiry into whether there is a historical link in fact between the wrong and the harm, and usually also a value judgement on whether liability for the harm ought to be imposed upon the defendant.

With regard to wrongs actionable only on proof of damage (for example, negligence), the attribution of responsibility for harm is part of establishing liability rather than a matter of remedy. With regard to wrongs actionable per se, the attribution of responsibility for harm is a matter of remedy since nominal damages can be awarded in the absence of loss. In any event, it is customary to discuss attribution of responsibility in books on remedies, and this book follows that custom.

As we have already seen, there are three basic elements to a successful action in negligence:

1. (1) a duty to take reasonable care owed by the defendant to the plaintiff

2. (2) a breach of that duty of care by the defendant

3. (3) damage resulting to the plaintiff from that breach.

This chapter deals with the third element. This stage involves taking (yet again) three steps:

1. (1) Identify the damage having an adverse effect on the plaintiff to be recognised by law as damage for which compensation can be sought.

2. (2) Link the defendant’s conduct (act or omission) to the damage suffered by the plaintiff.

3. (3) Establish the scope of the defendant’s liability or, putting it differently, establish the extent to which the defendant should be found liable for the harm suffered by the plaintiff OR the type of harm suffered was within the scope of foreseeability.

This chapter focuses on the concept that ‘because of’ the conduct of the wrongdoer, damage is suffered. Since the conduct of a person which contravenes one or more provisions of the ACL could also make the wrongdoer liable in tort or breach of contract, the extent to which common law principles would apply in the assessment of compensation under the ACL will make up a large part of the discussion.

The jurisprudence created under the s 52 of the ‘old’ Trade Practices Act and associated provisions concerning compensation for misleading or deceptive conduct remains largely applicable to the ACL due to the close similarity in the wording of the respective provisions. By virtue of s 131A Competition and Consumer Act, the ACL does not apply in respect of financial products. The equivalent provisions of the Australian Securities and Investments Commission Act, (‘ASIC Act’) which regulate financial services and products, are virtually identical and will not attract dedicated treatment.

Before a plaintiff can obtain compensation for harm suffered due to any wrong, they need to attribute the harm to the defendant’s wrongful conduct. Broadly, the defendant’s conduct must be a cause of the harm. There is usually a double inquiry here – first, into whether there was a factual historical link between the wrong and the harm (‘factual causation’) and second, a value judgment on whether liability for the harm ought to be imposed upon the defendant (‘legal causation’ or ‘scope of liability’).

Attributing responsibility is sometimes part of establishing liability (for example, for wrongs actionable only on proof of damage, such as negligence), but for wrongs which are actionable per se, it is a matter of remedy.

While the rules on attribution of liability are not the same for every wrong, there are significant similarities. The cases detailed in this chapter illustrate key commonalities and differences across the various wrongs in the rules governing attribution of responsibility. More detail of the specific rules used to attribute responsibility for the individual wrongs is found in the specific chapters on those wrongs.